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...presents... Presumed Guilty
by Andrew Schneider
and Mary Pat Flaherty
>>> a cDc publication.......1991 <<<
-cDc- CULT OF THE DEAD COW -cDc-
______________________________________________________________________________
Editor's note: This file was originally an article in The Pittsburgh Press from
Sunday, August 11th, 1991 and typed up by Shawn Valentine Hernan. So here it
is on your very own screen, something new to get angry about.
-S. Ratte'
______________________________________________________________________________
It's a strange twist of justice in the land of freedom. A law designed to
give cops the right to confiscate and keep the luxurious possessions of major
drug dealers mostly ensnares the modest homes, cars and cash of ordinary,
law-abiding people. They step off a plane or answer their front door and
suddenly lose everything they've worked for. They are not arrested or tried
for any crime. But there is punishment, and it's severe.
This article chronicles a frightening turn in the war on drugs. Ten
months of research across the country reveals that seizure and forfeiture, the
legal weapons meant to eradicate the enemy, have done enormous collateral
damage to the innocent. The reporters reviewed 25,000 seizures made by the
Drug Enforcement Administration. They interviewed 1,600 prosecutors, defense
lawyers, cops, federal agents, and victims. They examined court documents from
510 cases. What they found defines a new standard of justice in America: You
are presumed guilty.
February 27, 1991. Willie Jones, a second-generation nursery man in his
family's Nashville business, bundles up money from last year's profits and
heads off to buy flowers and shrubs in Houston. He makes this trip twice a
year using cash, which the small growers prefer.
But this time, as he waits at the American Airlines gate in Nashville
Metro Airport, he's flanked by two police officers who escort him into a small
office, search him and seize the $9,600 he's carrying. A ticket agent had
alerted the officers that a large Black man had paid for his ticket in bills,
unusual these days. Because of the cash, and the fact that he fit a "profile"
of what drug dealers supposedly look like, they believed he was buying or
selling drugs.
He's free to go, he's told. But they keep his money-his livelihood-and
give him a receipt in its place.
No evidence of wrongdoing was ever produced. No charges were ever filed.
As far as anyone knows, Willie Jones neither uses drugs, nor buys or sells
them. He is a gardening contractor who bought an airplane ticket. Who lost
his hard-earned money to the cops. And can't get it back.
That same day, an ocean away in Hawaii, federal drug agents arrive at the
Maui home of retirees Joseph and Frances Lopes and claim it for the U.S.
government.
For 49 years, Lopes worked on a sugar plantation, living in its camp
housing before buying a modest home for himself, his wife, and their adult,
mentally disturbed son, Thomas.
For a while, Thomas grew marijuana in the back yard-and threatened to kill
himself every time his parents tried to cut it down. In 1987, the police
caught Thomas, then 28. He pleaded guilty, got probation for his first offense
and was ordered to see a psychologist once a week. He has, and never again has
grown dope or been arrested. The family thought this episode was behind them.
But earlier this year, a detective scouring old arrest records for
forfeiture opportunities realized the Lopes house could be taken away because
they had admitted they knew about the marijuana.
The police department stands to make a bundle. If the house is sold, the
police get the proceeds.
Jones and the Lopes family are among the thousands of Americans each year
victimized by the federal seizure law-a law meant to curb drugs by causing
financial hardship to dealers.
A 10-month study by The Pittsburgh Press shows the law has run amok. In
their zeal to curb drugs and sometimes fill their coffers with the proceeds of
what they take, local cops, federal agents and the courts have curbed innocent
Americans' civil rights. From Maine to Hawaii, people who are never charged
with a crime had cars, boats, money and homes taken away.
In fact, 80 percent of the people who lost property to the federal
government were never charged. And most of the seized items weren't the
luxurious playthings of drug barons, but modest homes and simple cars and
hard-earned savings of ordinary people.
But those goods generated $2 billion for the police departments that took
them.
The owners' only crimes in many of these cases: They "looked" like drug
dealers. They were Black, Hispanic, or flashily dressed. Others, like the
Lopeses, have been connected to a crime by circumstances beyond their control.
Says Eric Sterling, who helped write the law a decade ago as a lawyer on a
congressional committee: "The innocent-until-proven-guilty concept is gone out
the window."
[The law: Guilt doesn't matter]
Rooted in English common law, forfeiture has surfaced just twice in the
United States since colonial times. In 1862, Congress permitted the president
to seize estates of Confederate soldiers. Then, in 1970, it resurrected
forfeiture for the civil war on drugs with the passage of racketeering laws
that targeted the assets of criminals.
In 1984 however, the nature of the law was radically changed to allow
government to take possession without first charging, let alone convicting the
owner. That was done in an effort to make it easier to strike at the heart of
the major drug dealers. Cops knew that drug dealers consider prison time an
inevitable cost of doing business. It rarely deters them. Profits and
playthings, though, are their passions. Losing them hurts.
And there was a bonus in the law. The proceeds would flow back to law
enforcement to finance more investigations. It was to be the ultimate poetic
justice, with criminals financing their own undoing. But eliminating the
necessity of charging or proving a crime has moved most of the action to civil
court, where the government accuses the item-not the owner-of being tainted by
a crime.
This oddity has court dockets looking like purchase orders: United States
of America vs. 9.6 acres of land and lake; U.S. vs. 667 bottles of wine. But
it's more than just a labeling change. Because money and property are at stake
instead of life and liberty, the Constitutional safeguards in criminal
proceedings do not apply.
The result is that "jury trials can be refused; illegal searches condoned;
rules of evidence ignored," says Louisville, Kentucky defense lawyer Donald
Heavrin. The "frenzied quest for cash," he says, is "destroying the judicial
system."
Every crime package passed since 1984 has expanded the uses of forfeiture,
and now there are more than 100 statutes in place at the state and federal
level. Not just for drug cases anymore, forfeiture covers the likes of money
laundering, fraud, gambling, importing tainted meats and carrying intoxicants
onto Indian land.
The White House, Justice Department and Drug Enforcement Administration
say they've made the most of the expanded law in getting the big-time
criminals, and they boast of seizing mansions, planes and millions in cash.
But the Pittsburgh Press in just 10 months was able to document 510 current
cases that involved innocent people-or those possessing a very small amount of
drugs-who lost their possessions.
And DEA's own database contradicts the official line. It showed that
big-ticket items-valued at more than $50,000-were only 17 percent of the total
25,297 items seized by DEA during the 18 months that ended last December.
"If you want to use that 'war on drugs' analogy, the forfeiture is like
giving the troops permission to loot," says Thomas Lorenzi, president-elect of
the Louisiana Association of Criminal Defense Lawyers.
The near-obsession with forfeiture continues without any proof that it
curbs drug crime-its original target.
"The reality is, it's very difficult to tell what the impact of drug
seizure is," says Stanley Morris, deputy director of the federal drug czar's
office.
[Police forces keep the take]
The "loot" that's coming back to police forces all over the nation has
redefined law-enforcement success. It now has a dollar sign in front of it.
For nearly eighteen months, undercover Arizona State Troopers worked as
drug couriers driving nearly 13 tons of marijuana from the Mexican border to
stash houses around Tucson. They hoped to catch the Mexican suppliers and
distributors on the American side before the dope got on the streets. But they
overestimated their ability to control the distribution. Almost every ounce
was sold the minute they dropped it at the houses.
Even though the troopers were responsible for tons of drugs getting loose
in Tucson, the man who supervised the setup still believes it was worthwhile.
It was "a success from a cost-benefit standpoint," says former Assistant
Attorney-General John Davis. His reasoning: It netted 20 arrests and at least
$3 million for the state forfeiture fund.
"That kind of thinking is what frightens me," says Steve Sherick. a Tucson
attorney. "The government's thirst for dollars is overcoming any long-range
view of what it is supposed to be doing, which is fighting crime."
George Terwilliger III, associate deputy attorney general in charge of the
U.S. Justice Department's program emphasizes that forfeiture does fight crime,
and "we're not at all apologetic about the fact that we do benefit
(financially) from it."
In fact, Terwilliger wrote about how the forfeiture program financially
benefits police departments in the 1991 Police Buyer's Guide of Police Chief
Magazine.
Between 1986 and 1990, the U.S. Justice Department generated $1.5 billion
from forfeiture and estimates that it will take in $500 million this year, five
times the amount it collected in 1986.
District attorney's offices throughout Pennsylvania handled $4.5 million
in forfeitures last year; Allegheny County (ED: Pittsburgh is in Allegheny
County) , $218,000, and the city of Pittsburgh, $191,000-up from $9,000 four
years ago.
Forfeiture pads the smallest towns' coffers. In Lexana, Kansas, a Kansas
City suburb of 29,000, "We've got about $250,000 moving in court right now,"
says narcotics detective Don Crohn.
Despite the huge amounts flowing to police departments, the are few public
accounting procedures. Police who get a cut of the federal forfeiture funds
must sign a form saying merely the will use it for "law enforcement purposes."
To Philadelphia police that meant new air conditioning. In Warren County,
N.J., it meant use of a forfeited yellow Corvette for the chief assistant
prosecutor.
Another account: Judy Mulford, 31, and her 13-year old twins, Chris and
Jason, are down to essentials in their Lake Park, Florida, home, which the
government took in 1989 after claiming her husband, Joseph, stored cocaine
there. Neither parent has been criminally charge, but in April a forfeiture
jury said Mrs. Mulford must forfeit the house she bought herself with an
insurance settlement. The Mulfords have divorced, and she has sold most of her
belongings to cover legal bills. She's asked for a new trial and lives in the
near-empty house pending a decision.
["Looking" like a criminal]
Ethel Hylton of New York City has yet to regain her financial independence
after losing $39,110 in a search nearly three years ago in Hobby Airport in
Houston.
Shortly after she arrived from New York, a Houston officer and Drug
Enforcement Administration agent stopped the 46-year-old woman in the baggage
area and told her she was under arrest because a drug dog had scratched at her
luggage. The dog wasn't with them, and when Miss Hylton asked to see it, the
officers refused to bring it out. The agents searched her bags, and ordered a
strip search of Miss Hylton, but found no contraband.
In her purse they found the cash Miss Hylton carried because she planned
to buy a house to escape the New York winters which exasperated her diabetes.
It was the settlement from an insurance claim, and her life's savings, gathered
through more than 20 years of work as a hotel housekeeper and hospital night
janitor.
The police seized all but $10 of the cash and sent Miss Hylton on her way,
keeping the money because of its alleged drug connection. But they never
charged her with a crime.
The Pittsburgh Press verified her jobs, reviewed her bank statements and
substantiated her claim she had $18,000 from an insurance settlement. It also
found no criminal record for her in New York City.
With the mix of outrage and resignation voiced by other victims of
searches, she says "The money they took was mine. I'm allowed to have it. I
earned it."
Miss Hylton became a U.S. citizen six years ago. She asks, "Why did they
stop me? Is it because I'm Black or because I'm Jamaican?" Probably, both-
although Houston police haven't said.
Drug teams interviewed in dozens of airports, train stations and bus
terminals and along other major highways repeatedly said they didn't stop
travellers based on race. But a Pittsburgh Press examination of 121
travellers' cases in which police found no dope, made no arrest, but seized
money anyway showed that 77 percent of the people stopped were Black, Hispanic,
or Asian.
In April, 1989, deputies from Jefferson Davis Parish, Louisiana, seized
$23,000 from Johnny Sotello, a Mexican-American whose truck overheated on a
highway.
They offered help, he accepted. They asked to search his truck. He
agreed. They asked if he was carrying cash. He said he was because he was
scouting heavy equipment auctions. They then pulled a door panel from the
truck, said the space behind it could have hidden drugs, and seized the money
and the truck, court records show. Police did not arrest Sotello but told him
he would have to go to court to recover his property.
Sotello sent auctioneer's receipts to police which showed he was a
licensed buyer. The sheriff offered to settle the case, and with his legal
bills mounting after two years, Sotello accepted. In a deal cut last March, he
got his truck, but only half his money. The cops kept $11,500.
I was more afraid of the banks than anything-that's one reason I carry
cash," says Sotello. "But a lot of places won't take checks, only cash, or
cashier's checks for the exact amount. I never heard of anybody saying you
couldn't carry cash."
Affidavits show the same deputy who stopped Sotello routinely stopped the
cars or Black and Hispanic drivers, exacting "donations" from some.
After another of the deputy's stops, two Black men from Atlanta handed
over $1,000 for a "drug fund" after being detained for hours, according to a
hand-written receipt reviewed by the Pittsburgh Press.
The driver got a ticket for "following to (sic) close." Back home, they
got a lawyer.
Their attorney, in a letter to the Sheriff's department, said deputies had
made the men "fear for their safety, and in direct exploitation of the fear a
purported donation of $1000 was extracted...."
If they "were kind enough to give the money to the sheriff's office," the
letter said, "then you can be kind enough to give it back." If they gave the
money "under other circumstances, then give the money back so we can avoid
litigation." Six days later, the sheriff's department mailed the men a $1,000
check.
Last year, the 72 deputies of Jefferson Davis Parish led the state in
forfeitures, gathering $1 million-more than their colleagues in New Orleans, a
city 17 times larger than the parish.
Like most states, Louisiana returns the money to law enforcement agencies,
but it has one of the more unusual distributions: 60 percent goes to the police
bringing a case, 20 percent to the district attorney's office prosecuting it
and 20 percent to the court fund of the judge signing the forfeiture order.
"The highway stops aren't much different from a smash-and-grab ring," says
Lorenzi, of the Louisiana Defense Lawyers association.
[Paying for your innocence]
The Justice Department's Terwilliger says that in some cases "dumb
judgement" may occasionally cause problems, but he believes there is an
adequate solution. "That's why we have courts."
But the notion that courts are a safeguard for citizens wrongly accused
"is way off," says Thomas Kerner, a forfeiture lawyer in Boston. "Compared to
forfeiture, David and Goliath was a fair fight."
Starting from the moment that the government serves notice that it intends
to take an item, until any court challenge is completed, "the government gets
all the breaks," says Kerner.
The government need only show probable cause for a seizure, a standard no
greater than what is needed to get a search warrant. The lower standard means
the government can take a home without any more evidence than it normally needs
to take a look inside.
Clients who challenge the government, says attorney Edward Hinson of
Charlotte, N.C., "have the choice of fighting the full resources of the U.S.
Treasury or caving in."
Barry Kolin caved in. Kolin watched Portland, Oregon, police padlock the
doors of Harvey's, his bar and restaurant for bookmaking on March 2. Earlier
that day, eight police officers and Amy Holmes Hehn, the Multnomah County
deputy district attorney, had swept into the bar, shooed out waitresses and
customers and arrested Mike Kolin, Barry's brother and bartender, on suspicion
of bookmaking.
Nothing in the police documents mentioned Barry Kolin, and so the
40-year-old was stunned when authorities took his business, saying they believe
he knew about the betting. He denied it. Hehn concedes she did not have the
evidence to press a criminal case against Barry Kolin, "so we seized the
business civilly."
During a recess in a hearing on the seizures weeks later, "the deputy DA
says if I paid them $30,000 I could open up again," Kolin recalls. When the
deal dropped to $10,000, Kolin took it.
Kolin's lawyer, Jenny Cooke, calls the seizure "extortion." She says:
"There is no difference between what the police did to Barry Kolin or what Al
Capone did in Chicago when he walked in and said, 'This is a nice little bar
and it's mine.' The only difference is today they call this civil forfeiture."
[Minor crimes, major penalties]
Forfeiture's tremendous clout helps make it "one of the most effective
tools that we have," says Terwilliger. The clout, though, puts property owners
at risk of losing more under forfeiture that they would in a criminal case
under the same circumstances.
Criminal charges in federal and many state courts carry maximum sentences.
But there's no dollar cap on forfeiture, leaving citizens open to punishment
that far exceeds the crime.
Robert Brewer of Irwin, Idaho, is dying of prostate cancer, and uses
marijuana to ease the pain and nausea that comes with radiation treatments.
Last Oct. 10, a dozen deputies and Idaho tax agents walked into the Brewer's
living room with guns drawn and said they had a warrant to search.
The Brewers, Robert, 61, and Bonita, 44, both retired from the postal
service, moved from Kansas City, Mo., to the tranquil, wooded valley of Irwin
in 1989. Six months later, he was diagnosed.
According to police reports, and informant told authorities Brewer ran a
major marijuana operation.
The drug SWAT team found eight plants in the basement under a grow light
and a half-pound of marijuana. The Brewers were charged with two felony
narcotics counts and two charges for failing to buy state tax stamps for the
dope.
"I didn't like the idea of the marijuana, but it was the only thing that
controlled his pain," Mrs. Brewer says.
The government seized the couples five-year-old Ford van that allowed him
to lie down during his twice-a-month trips for cancer treatment at a Salt Lake
City hospital, 270 miles away. Now they must go by car.
"That's a long painful ride for him. His testicles would sometimes swell
up to the size of cantaloupes, and he had to lie down because of the pain. He
needed that van, and the government took it," Mrs. Brewer says. "It looks like
the government can punish people any way it sees fit."
The Brewers know nothing about the informant who turned them in, but
informants play a big role in forfeiture. Many of them are paid, targeting
property in return for a cut of anything that is taken.
The Justice Department's asset forfeiture fund paid $24 million to
informants in 1990 and has $22 million allocated this year.
Private citizens who snitch for a fee are everywhere. Some airline
counter clerks receive cash awards for alerting drug agents to "suspicious"
travellers. The practice netted Melissa Furtner, a Continental Airlines clerk
in Denver, at least $5,800 between 1989 and 1990, photocopies of checks show.
Increased surveillance, recruitment of citizen-cops, and expansion of
forfeiture sweeps are all part of a take-now, litigate-later syndrome that
builds prosecutors careers, says a former federal prosecutor.
"Federal law enforcement people are the most ambitious I've ever met, and
to get ahead they need visible results. Visible results are convictions, and,
now, forfeitures," says Don Lewis of Meadville, Crawford County.
Lewis spent 17 years as a prosecutor, serving as an Assistant U.S.
Attorney in Tampa as recently as 1988. He left the Tampa job-and became a
defense lawyer-when "I found myself tempted to do things I wouldn't have
thought about doing years ago."
Terwilliger insists U.S. attorneys would never be evaluated on "something
as unprofessional as dollars." Which is not to say Justice doesn't watch the
bottom line.
Cary Copeland, director of the department' Executive Office for Asset
Forfeiture, says the tried to "squeeze the pipeline" in 1990 when the amount
forfeited lagged behind Justice's budget projections.
He said this was done by speeding up the process, not by doing "a whole
lot of seizures."
[Ending the Abuse]
While defense lawyers talk of reforming the law, agencies that initiate
forfeiture scarcely talk at all.
DEA headquarters makes a spectacle of busts like the seizure of fraternity
houses at the University of Virginia in March. But it refuses to supply
detailed information on the small cases that account for most of its activity.
Local prosecutors are just as tight-lipped. Thomas Corbett, U.S. Attorney
for Western Pennsylvania, seals court documents on forfeitures because "there
are just some things I don't want to publicize. The person whose assets we
seized will eventually know, and who else has to?"
Although some investigations need to be protected, there is an
"inappropriate secrecy" spreading throughout the country, says Jeffrey Weiner,
president-elect of the 25,000 member National Association of Criminal Defense
Lawyers.
"The Justice Department boasts of the few big fish they catch. But they
throw a cloak of secrecy over the information on how many innocent people are
getting swept up in the same seizure net, so no one can see the enormity of the
atrocity."
Terwilliger says the net catches the right people: "bad guys" as he calls
them.
But a 1990 Justice report on drug task forces in 15 states found they
stayed away from the in-depth financial investigations needed to cripple major
traffickers. Instead, "they're going for the easy stuff," says James "Chip"
Coldren, Jr., Executive Director of the Bureau of Justice Assistance, a
research arm of the federal Justice Department.
Lawyers who say the law needs to be changed start with the basics: The
government shouldn't be allowed to take property until after it proves the
owner guilty of a crime. They go on to list other improvements, including
having police abide by their state laws, which often don't give police as
much latitude as the federal law. Now they can use federal courts to
circumvent the state.
Tracy Thomas is caught in that very bind. A jurisprudence version of the
shell game hides roughly $13,000 taken from Thomas, a resident of Chester, near
Philadelphia.
Thomas was visiting in his godson's home on Memorial Day, 1990, when local
police entered looking for drugs allegedly sold by the godson. They found none
and didn't file a criminal charge in the incident. But they seized $13,000
from Thomas, who works as a $70,000-a-year engineer, says his attorney, Clinton
Johnson.
The cash was left over from a sheriff's sale he'd attended a few days
before, court records show. The sale required cash-much like the government's
own auctions.
During a hearing over the seized money, Thomas presented a withdrawal slip
showing he'd removed money from his credit union shortly before the trip and a
receipt showing how much he had paid for the property he'd bought at the sale.
The balance was $13,000.
On June 22, 1990, a state judge ordered Chester police to return Thomas'
cash. They haven't.
Just before the court order was issued, the police turned over the cash to
the DEA for processing as a federal case, forcing Thomas to fight another level
of government. Thomas is now suing the Chester police, the arresting officer,
and the DEA.
"When the DEA took over that money, what they in effect told a local
police department is that it's OK to break the law," says Clinton Johnson,
attorney for Thomas.
Police manipulate the courts not only to make it harder on owners to
recover property, but to make it easier for police to get a hefty share of any
forfeited goods. In federal court, local police are guaranteed up to 80
percent of the take-a percentage that may be more than they'd receive under
state law.
Pennsylvania's leading police agency-the state police-and the state's lead
prosecutor-the Attorney General-bickered for two years over state police taking
cases to federal court, an arrangement that cut the Attorney General out of the
sharing.
The two state agencies now have a written agreement on how to divvy the
take.
The same debate is heard around the nation. The hallways outside
Cleveland courtrooms ring with arguments over who will get what, says Jay
Milano, a Cleveland criminal defense attorney. "It's causing a feeding
frenzy."
_ _ ____________________________________________________________________
/((___))\|Demon Roach Undrgrnd.806/794-4362|Kingdom of Shit.......806/794-1842|
[ x x ] |NIHILISM.............517/546-0585|The Polka AE{PW:KILL} 806/794-4362|
\ / |Ripco................312/528-5020|Tequila Willy's GSC...209/526-3194|
(' ') |The Works............617/861-8976|Blitzkrieg............502/499-8933|
(U) |====================================================================|
.ooM |1991 cDc communications by Schneider, Flaherty 10/31/91-#199|
\_______/|All Rights Pissed Away. FIVE YEARS of cDc|